SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2018, Issue No. 48
July 26, 2018

Secrecy News Blog: https://fas.org/blogs/secrecy/

CONGRESS URGES CYBER OPS AGAINST RUSSIA, OTHERS

Rebuking the Trump Administration for its "passivity," Congress is pressing the Department of Defense to engage in "active defense" in cyberspace against Russia, China, North Korea and Iran.

A new provision in the conference report on the FY2019 national defense authorization act (sect. 1642) would "authorize the National Command Authority to direct the Commander, U.S. Cyber Command, to take appropriate and proportional action through cyberspace to disrupt, defeat, and deter systematic and ongoing attacks by the Russian Federation in cyberspace." It would further "add authorizations for action against the People's Republic of China, the Democratic People’s Republic of Korea, and the Islamic Republic of Iran."

"The conferees have been disappointed with the past responses of the executive branch to adversary cyberattacks and urge the President to respond to the continuous aggression that we see, for example, in Russia's information operations against the United States and European allies in an attempt to undermine democracy."

"The administration's passivity in combating this campaign. . . will encourage rather than dissuade additional aggression."

"The conferees strongly encourage the President to defend the American people and institutions of government from foreign intervention," the report language said.

The congressional report does not propose an actual cyber strategy, nor does it specify desired outcomes, or address unintended consequences.

Another provision in the new conference report says that the Department of Defense ought to be just as assertive and "aggressive" in cyberspace as it is elsewhere (sect. 1632).

"The conferees see no logical, legal, or practical reason for allowing extensive clandestine traditional military activities in all other operational domains (air, sea, ground, and space) but not in cyberspace," the report said.

"It is unfortunate that the executive branch has squandered years in interagency deliberations that failed to recognize this basic fact and that this legislative action has proven necessary."

"The conferees agree that the Department should conduct aggressive information operations to deter adversaries."

Curiously, the report found it necessary to add that "the conferees do not intend this affirmation as an authorization of clandestine activities against the American people."

In general, another provision (sect. 1636) states, the U.S. needs to be ready for war in cyberspace:

"It shall be the policy of the United States, with respect to matters pertaining to cyberspace, cybersecurity, and cyber warfare, the United States should employ all instruments of national power, including the use of offensive cyber capabilities, to deter if possible, and respond to when necessary, all cyber attacks or other malicious cyber activities of foreign powers that target United States interests with the intent to... cause casualties among United States persons or persons of United States allies; significantly disrupt the normal functioning of United States democratic society or government (including attacks against critical infrastructure that could damage systems used to provide key services to the public or government); threaten the command and control of the Armed Forces, the freedom of maneuver of the Armed Forces, or the industrial base or other infrastructure on which the United States Armed Forces rely to defend United States interests and commitments; or achieve an effect, whether individually or in aggregate, comparable to an armed attack or imperil a vital interest of the United States."

BMD FLIGHT TEST SCHEDULE MUST BE UNCLASSIFIED

Earlier this year, the Department of Defense classified the schedule of flight tests of ballistic missile defense systems, even though such information had previously been unclassified and publicly disclosed.

Rejecting that move, Congress has now told the Pentagon's Missile Defense Agency that the flight test schedule must be unclassified.

A new provision in the FY2019 national defense authorization act (sect. 1681) would "require that MDA make the quarter and fiscal year for execution of planned flight tests unclassified."

"Together with the release of each integrated master test plan of the Missile Defense Agency, and at the same time as each budget of the President is submitted to Congress..., the Director of the Missile Defense Agency shall make publicly available a version of each such plan that identifies the fiscal year and the fiscal quarter in which events under the plan will occur," the provision states.

This legislative action will effectively override the classification judgment of the executive branch. That is something that Congress rarely does and that the executive branch regards as an infringement on its authority.

BID TO RECTIFY THE BLACK BUDGET FAILS

The so-called "black" budget -- which refers to classified government spending on military procurement, operations, and intelligence -- is not merely secret. It is actually deceptive and misleading, since it produces a distortion in the amount and the presentation of the published budget.

The amount of money that is purportedly appropriated for the US Air Force, for example, does not all go to the Air Force, the Senate Armed Services Committee recently observed.

"Each year, a significant portion of the Air Force budget contains funds that are passed on to, and managed by, other organizations within the Department of Defense. This portion of the budget, called 'pass-through,' cannot be altered or managed by the Air Force. It resides within the Air Force budget for the purposes of the President's budget request and apportionment, but is then transferred out of the Service's control," according to a Senate report on the 2019 defense bill (S.Rept. 115-262).

Although the report does not say so, the Air Force budget may also include pass-through funding for the Central Intelligence Agency, which of course is not even part of the Department of Defense, as well as for other non-Air Force intelligence functions.

"In fiscal year 2018, the Air Force pass-through budget amounted to approximately $22.0 billion, or just less than half of the total Air Force procurement budget. The committee believes that the current Air Force pass-through budgeting process provides a misleading picture of the Air Force's actual investment budget."

The Senate therefore recommended that such "pass-through" funds be removed from the Air Force budget and included in Defense-wide appropriations.

But in the House-Senate conference on the FY2019 defense bill, this move was blocked and so the deceptive status quo will continue to prevail.

Earlier this month, the Director of National Intelligence and the Pentagon Comptroller wrote to Congress to present their views on the Senate provision. A copy of their letter, which presumably objected to the proposed move, has been requested but not yet released.

The logic of the Senate proposal was explained by Mackenzie Eaglen of the American Enterprise Institute in "Time to Get the Black Out of the Blue," Real Clear Defense, June 13.

RESURGENCE OF CHEMICAL WEAPONS USE, AND MORE FROM CRS

Noteworthy new reports from the Congressional Research Service include the following.

Resurgence of Chemical Weapons Use: Issues for Congress, CRS Insight, July 24, 2018:

Mutual Legal Assistance Treaty with the Russian Federation: A Sketch, CRS Legal Sidebar, July 24, 2018:

FY2019 Defense Appropriations Bill: An Overview of House-passed H.R. 6157, CRS In Focus, July 19, 2018:

The Trump Administration's "Zero Tolerance" Immigration Enforcement Policy, July 20, 2018:

Judicial Opinions of Judge Brett M. Kavanaugh, July 23, 2018:

******************************

Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

The Secrecy News blog is at:
      https://fas.org/blogs/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     https://fas.org/sgp/news/secrecy/subscribe.html

To UNSUBSCRIBE, go to:
      https://fas.org/sgp/news/secrecy/unsubscribe.html

OR email your request to saftergood@fas.org

Secrecy News is archived at:
      https://fas.org/sgp/news/secrecy/index.html

SUPPORT the FAS Project on Government Secrecy with a donation here:
      https://fas.org/donate/